Calcutta High Court
Shrey Mercantiles Pvt. Ltd. And Ors. vs Calcutta Municipal Corporation on 31 January, 2000
Equivalent citations: AIR2000CAL193A, AIR 2000 CALCUTTA 193, (2000) CAL WN 452 (2000) 1 CAL HN 457, (2000) 1 CAL HN 457
ORDER Ajoy Nath Ray, J.
1. This is a writ petition challenging the imposition of mutation fees upon the writ petitioner by the Calcutta Corporation.
2. Before the introduction of the impugned Regulations of 1989, the Municipal Authorities charged nominal mutation fees. These fees have been provided for since 1980, (which is the year of the currently operative Municipal Act in Calcutta) in Section 183 of the Act.
3. Mutation, simply put, is the process of change of the name of the owner in the books of the Municipal Authorities. Under the aforesaid Section notice of transfer of ownership is to be given, and if notice is not given, the erstwhile owner will be liable for rates as owner notwithstanding transfer of ownership.
4. Section 193 of the Act provides that the primary liability for payment of rates and taxes for buildings vests with the owner.
5. The Municipal Authorities, by the process of mutation, have the advantage of keeping their books and records upto-date and of serving notice upon the person primarily liable for the payment. The owner of the property, in his turn, gets the benefit of having notice of the owner's liability and by making punctual payment can keep his property clear of all Corporation dues.
6. Apart from these the mutation of name in the books of the Municipal Authorities hardly serves any other or different purpose. It is well-known that the Municipal records are not such records as affect title to im-moveable property.
7. In 1989, in exercise of the power conferred by Section 602 of the said Act, after approval of the State Government as per Section 604, the Municipal Corporation made the impugned Regulations published under Notification dated 29-12-89, terming those "The Calcutta Municipal Corporation (Taxation) Regulations 1989".
8. The Regulations would be found set out at pages 73 and 74 of the writ petition.
9. The Scheme of the introduction of mutation fees as per these Regulations is, however, very simple, in so far as the arithmetic is concerned. If the ownership changes because of intestate succession, the maximum fees, as per these Regulations is Rs. 250/- only, as per item 3 of the Schedule of the said Regulations.
10. However, as per items 1 and 2 of the said Schedule, in cases of sale, testamentary succession or such transfers as by Deed of Lease, the mutation fees are scaled on the price/value of the property.
11. The scale ranges from half percent of the price for property valued under Rs. 50,000/- to two and a half percent of the price if the property goes above Rs. 5 lac.
12. In the case of the writ petitioners, if their challenge falls, they would have to pay mutation fees of the order of Rs. 3 lac.
13. The contrast between the mutation fees as in the case of intestate succession and in case of purchase by Deed is very stark. The difference is the difference between a few hundreds of rupees and several lacs of rupees.
14. Mr. Ghosh appearing for the writ petitioner challenged the Regulations and the incidence of the mutation fees upon his clients on primarily this ground that the mutation fees are in the nature of fees only. According to him such fees cannot be given, by the Regulations of the Municipal Authorities the status of a tax. Mr. Ghosh drew a distinction, basing it upon a long line of decisions, between tax and fees. He submitted that taxation is a cumpulsory levy, as permitted by the Constitution, to be imposed by or by authority of the Central or the State legislature, as the case may be, for which there is not necessarily a specific return made by the imposing Government to the very same class of persons from whom the tax is taken. On the basis of taxation the Country and the State run.
15. However, fees are different. There is not so much vigil to be kept about the power of imposition of fees as is to be kept in the matter of the power of imposition of tax; this is because fees are charged by the Government in return for a service. The person paying fees as a service in return for it. The relationship between the amount paid and the value of the services got might not be an exact relationship of an exact quid pro quo, but a reasonable nexus should exist between the two. Furthermore the drawal of fees from the persons of a class might benefit the class as a whole and not the individuals themselves separately. An example would be a market fee taken from those who visit the market; in return for which the visitors get a clean and usable market place.
16. Mr. Ghosh further submitted that in the guise of imposition of mutation fees, the Municipal Authorities have sought to introduce a value graded tax. Taxation, however, is not a subject of Section 183 of the said Act at all which deals with mutation. According to Mr. Ghosh the primary rates obtained by the Municipal Authorities are rates and taxes of buildings and the power to levy these is to be found in Section 170(and 171) of the said Act. Since the Regulations have to be made by the Municipal Authorities either in accordance with the main Act of 1980, or not at all, they have exceeded their powers of charging of mutation fees as per Section 183 of the said Act and they have travelled beyond the said Section into areas of levy of rates and taxes. Such traversing of their sphere is, according to Mr. Ghosh impermissible when the State Government gave the Municipal Authorities power to frame Regulations and when the State set out specific heads of taxation under Sections 170 and 171 of the said Act, it was not open thereafter for the Municipal Authorities to travel on their own beyond the four corners of Section 183, and try to extend the Section into a separate tax imposing Section altogether.
17. Mr. Ghosh also argued on the power of the State Legislature itself to impose tax and he showed me several entries from the lists of the seventh Schedule of our Constitution. Since in my opinion the close examination of the said Schedule is important and basic in this matter, 1 further pressed Mr. Ghosh in this regard and the discussion about the seventh Schedule shall be made separately hereafter. Mr. Ghosh also made a fourth argument that, just as in the case of the permissibility of a Central or a State Act, the legislation must satisfy the twin tests of reasonableness of classification and the existence of a comprehensible nexus between the provisions of the enactment and the objects sought to be achieved by it, so also must a similar twin test be satisfied by every sub-ordinate legislation. According to Mr. Ghosh the impugned Regulation is sub-ordinate to State Legislation and authorised by it. The State Act is the Municipal Corporation Act of 1980. Regulations are permitted to be made thereunder; with State Government approval (Section 604). The approval of the State Government, however, is absolutely different from the enactment by the State Legislature. No approval by the State Government raises the Regulation to the status of primary legislation by the State of West Bengal. The Municipal Regulations are subordinate legislation and notwithstanding State approval subordinate legislation these shall always be. According to Mr. Ghosh the classification and distinction introduced between intestate successors to property on the one hand, and those who get the property either under a Will or under a Deed on the otherhand, is absolutely unreasonable. According to him in the circumstances it is not reasonable to draw a distinction between, say an only son who gets on intestate succession and another only son who gets the property under a one line Will. Similarly the distinction between obtaining of property after death and obtaining of property inter vivos is unreasonable in the circumstances of the present situation.
18. He further argued that the object sought to be achieved by the Regulation must and should be that of obtaining finances for the Municipal Authorities to do all jobs and deeds for the purpose of continuing with the process of mutation in regard to all the buildings under the control of the Municipal Authorities. This object does not have to be achieved by imposition of lacs of rupees upon single transfers, but some other object is achieved thereby. That other object is the object of raising of general revenue. Thus, with the object of continuing with smooth mutation in the Municipal body, the impugned Regulations do not bear a sufficiently close and reasonable nexus.
19. Mr. Bihani appearing for the Municipal Authorities disputed all the points raised by the writ petitioners. He argued that, in view of the current decisions of the Supreme Court, the distinction between fees and tax is shown to be in a process of evolution. According to him the fees imposed by way of mutation are needed by the Municipal Authorities for its large expenses. Mr. Bihani drew the attention of the Court to the affida-vit-in-opposition where the total expenses of the Calcutta Corporation are mentioned along with the rates obtained by the Municipal Authorities and the deficit from year to year. According to Mr. Bihani if the mutation fees are used for the general expenses of the Municipal Authorities, even then such fees do not necessarily lose the character of fees. Mr. Bihani dealt with all the cases cited by Mr. Ghosh. He raised additional points about the writ petition being premature, about there being no discrimination and also about the challenged Regulations being of as early as 1989 and, therefore, too old to be challenged now.
20. But, in my opinon, the main point of Mr. Bihani was his stand that fees for mutation can be justified as fees specially because those are heavily needed by the Calcutta Corporation, even if the necessity is for general finding.
21. In showing the distinction between the 'fees' and 'tax' Mr. Ghose started with 2 cases of 'Ratilal Panachand Gandhi' and 'Sri Jagannath', reported respectively at and , both being the decisions of the same Bench of strength 5, and in which cases the judgments were delivered by the Hon'ble Mr. Justice Bijan Kumar Mukherjee, as His Lordship then was.
22. The distinction between 'fees' and 'tax' was no doubt drawn by the Supreme Court in both the cases, the earlier of which is reported in the later page. It was said that fees are given for certain services rendered but that for payment of tax the tax-payers get only a participation in the common benefits of the State.
23. The idea would remind one of the famous statements of Justice Homes that His Lordship was happy to pay tax, because His Lordship bought civilization with it. Mr. Ghose then cited the case of 'Indian Mica,' another judgment by a Bench of strength 5, reported at , where there are observations to the effect that for determining whether a levy is a fee or not the Court should determine the real character of the imposition; that fees postulate the giving of specific services to a specific area or class; that there has to be a correlation between the services rendered and the fees taken and that the State should produce materials to establish such correlation which is essentially a matter of fact.
24. In the case of K. K. Puri', a judgment of a Bench of the same strength as above, reported at , there are observations, inter alia, in paragraph 8 that the amount of fees taken is to be spent for the benefit of the payers and, in paragraph 23, Item 7, that two-thirds or three-fourths might be spent for rendering special services to payers.
25. Mr. Ghose also relied upon the cases of Delhi Cloth and Nagar Mahapalika, reported respectively at and . These are respectively cases decided by the Benches of strength 2 and 3.
26. In the above cases, with perhaps some reservation made in the Delhi Cloth case there is a general observation that a tax imposed goes to the general fund of the State but fees (impliedly) do not. The not going of fees to the general fund is not made so express in the judgments as the going of tax to the general fund is.
27. Both Mr. Ghose and Mr. Bihani spent a lot of time on the case of Sreenivasa General Traders, reported at , a judgment of a Bench of strength 3, being delivered by the Hon'ble Mr. Justice A. P. Sen, as His Lordship then was.
28. In this case His Lordship stated (see paragraphs 30 and 31) that it was being increasingly realised that quid pro quo in the case of fees is not an essential element.
29. His Lordship further pointed out that as per Article 266 of the Constitution of India fees would also have to be put into the consolidated funds just like tax. His Lordship referred in this regard to Mr. Seerai's book on our Constitution. The said author, however, in Volume III of the book (see paragraphs 22.102 to 22.105) said in so many words that although His Lordship had said that according to the author quid pro quo is not a necessary element of fees, yet according to the author, he had always stated that it was an essential element.
30. To the sentence where the Learned Judge said that 'stricto sensu1 'quid pro quo' is not an essential element of fees, it would not be fair to ascribe this meaning that the fees need not bear any relationship to the services rendered at all.
31. In the same judgment His Lordship said that although the State may benefit from fees, a reasonable relationship between 'fee' and 'service' there is to be. One cannot spell in that single sentence of His Lordship containing no fewer than two Latin Phrases a departure from several Supreme Court decisions given by Benches of larger strength.
32. In my respectful opinion, the case of 'Sreenivasa General Traders,' is an evolution in the process of understanding fees and taxation which is a live subject, but it is not a departure from the principles already settled. After 'Sreenivasa General Traders' the Court will allow more leeway in the matter of raising of fees for services but that is all.
33. Mr. Bihani then gave the case of 'P. Kannadasan', a decision by a Bench of strength 2, reported at . In this case fees for licences were again discussed. There is a special distinction made between regulatory fees and other fees. Mr. Bihani sought to draw sustenance from this distinction and he said relying on this judgment that if fees are regulatory, there need not be an element of quid pro quo at all. According to him, mutation fees are regulatory in nature and, therefore, the necessity of existence of quid pro quo vanishes. Mr. Bihani gave a list of several sections of the Municipal Act whereby different types of fees are raised.
34. In this connection it might be interesting to mention that value graded fees are also levied by Municipal Authorities for sanction of Building Plans and these fees appear to bear a very close resemblance to the value graded structure of mutation fees. However, we are not concerned with the Building Sanction Fees here which are also important and might be of the order of lacs of rupees;
but I do not want to make any observation which might spell out an unnecessary obiter in regard to building sanction fees.
35. Mr. Ghose also spent a lot of time on the phrase of 'regulatory fees' used in the above case. He pointed out that the case referred to an earlier decision of the Supreme Court in the case of Liberty Cinema, reported at . According to Mr. Ghose, that case referred to Cinema Hall Licences and that the facts of the case of 'P. Kannadasan', were concerned with not really a fee at all but a taxation. The Bench was passing as good a tax which had been imposed. No instances of regulatory fees are mentioned in the judgment of P. Kannadasan. Thus, it is not possible for a Single Judge of a High Court like me to disregard 5 Judge decisions of the Supreme Court and introduce from that single phrase of 'regulatory fees' a totally new concept of fees where quid pro quo is totally absent.
36. I might venture to suggest that there might be regulatory fees where those are taken for controlling a crowd or for giving application forms for giving contract and such like; these might be instances of not rendering services but making a check by Introduction of a small sum of money. But we are not concerned here with any regulation by introduction of a small sum of money, we are concerned with lacks of rupees.
37. The last case cited in this regard was that of Secunderabad Hyderabad Hotel, reported at ; it is, in my respectful reading of it, a re-statement of the old law.
38. On the above basis it is my opinion that the Municipal Authorities are not justified in using their power of levying fees for mutation for the purposes of charging large sums of money of the order of lacs of rupees which partake of the character of taxation. Admittedly, these funds go for meeting the general expenditure of the Corporation and are not limited even to any reasonable percentage, to rendering of services of mutation, i.e. of changing of names, of sending of bills etc.
39. I am not much being guided by the word 'fee' being used in Section 183 or the word 'fee' being used in the impugned regulation, but by the substances of the imposition which is in substance a fee. It is taken for a specific purpose. It is taken for the purpose of records and billing. It is a separate compartmentalized activity of the Municipal Authorities which is not and does not have to be mixed up with its general functions. When a tax is sought to be imposed in this small compartment of mutation, the word, 'fee' is changed both in language and in substance and is made unauthorisedly to assume the character of tax.
40. The conclusion made from the general nature of mutation fees, and the statutory provisions in relation thereto contained, inter alia, in Section 283 of the Calcutta Municipal Corporation Act, 1980 is that mutation fees are fees properly so called. As soon as that conclusion is reached the necessity of the fee retaining its character as a fee and of not transgressing its limits into the region of tax, arises. The decisions are so many and so authoritative that an imposition, if it is a fee properly so called, then and in that event it has to exhibit, for its validity, the typical characteristics of fees. These are that some services are rendered to the paying class in return for the fees, that the fees and the services rendered bear a relationship to each other which, although not exact or arithmetical, is real and there has to be a reasonable correlation; thirdly that a good part of the fees collected are expended by the collecting public authority for the benefit of the paying class.
41. This characteristic of a fee has to hold good whether the fee is imposed by primary legislation or secondary i.e. subordinate legislation. If Parliament imposes a fee properly so-called, it cannot transgress into the sphere of taxation. If State Government imposes a fee properly so-called, it cannot transgress into the sphere of taxation. If a creature of a State statute, functioning under it like the Calcutta Municipal Corporation imposes a fee which is a fee properly so-called then that also cannot transgress into the area of taxation.
42. By the affidavit-in-opposition of the Calcutta Municipal Corporation, their case in this matter is self condemned. Their case is that the mutation fees are being used and have been levied for the general revenue needed by the Calcutta Municipal Corporation. The paying class is not specially benefited. No reasonable relationship is sought to be established by the Municipal Corporation between the amount of mutation fees I and the services rendered in return therefor. I Their stand could be vindicated if and only if it could be possible to say that even if mutation fee is called a fee, it is not really a fee but it is a tax. Such cases might occur. Indeed the Liberty Cinema case, mentioned above which is referred to in the 1996 Supreme Court Case mentioning regulatory fees was a case for imposition of cinema licence fees which would perhaps be called fees but was in fact state taxation.
43. It is, in my opinion, not possible to call mutation fees a tax of some nature which has been permitted by the State Legislature to be imposed by the Municipal Authorities by the framing of regulations.
44. This brings us to the constitutional aspect of the matter and the lists contained in the Seventh Schedule thereto. The point arises in this writ if in the guise of fees the State has allowed the Municipal Corporation to impose tax; if so, then for the validity of such delegation too and preconditions must be fulfilled. The first and foremost is that the State itself must have power to impose tax of the type delegated to the Municipal Authorities, which could be imposed, if the State Legislature so chose, by the State Legislature itself in the circumstances delegated. In other words if the Municipal Corporation can levy under the name of mutation fee some tax, then for its validity, the State of West Bengal must have the power to impose the same tax by the deliberations in the State Legislature itself, if it so chose.
45. Secondly, for the subordinate legislation imposing the levy to be valid, the delegation by the State Legislature must not suffer from the vice of excessive delegation. In other words the State Legislature cannot abrogate its legislative function, if it has such power itself in the first place, to a subordinate authority without giving appropriate guidelines and without circumscribing reasonably the region within which the subordinate authority must function in regard to exercise of its powers of subordinate legislation. These points are not the main points made out in the writ but these points are so important and the levy of mutation fee is economically such a serious matter that the questions, being primarily questions of pure law, should rather be discussed by me than left out altogether merely because specific grounds in the writ petition are absent. Both parties were given full opportunity to address me on these issues and that these appeared to be important to me was made clear to the parties at all times during the hearing.
46. In my opinion, the second point of excessive delegation does not really fall to be considered; mutation fees in the Municipal Corporation Act are mentioned, merely as such and no guideline is given excepting this that the fees imposed must be mutation fees. Naturally, no Municipal Authority shall impose in the garb of mutation fees anything but that which is needed for mutation. That guideline is quite enough. But the first point is important, that is what power does the State Legislature itself had to impose a tax called mutation fees, which it has delegated to the Calcutta Municipal Corporation. Could the State Government itself impose a tax in the shape of mutation fees? Just as the State Government has power to levy rates and taxes for buildings, and it has delegated such legislative power of its to the Calcutta Municipal Corporation as under Sections 270 and 271 of the 1980 Act, has the State Government also such legislative competency in regard to a tax called mutation fees, and has it delegated such power to the Municipal Authorities? If the answer is in the affirmative, then Mr. Behani would have a good point in support of his clients' case.
47. Some entries in the three lists of the Seventh Schedule have to be mentioned here. Item No. 87 in the first list i.e. the Union List mentions an estate duty in respect of property other than agricultural land. I mention this entry because the mutation fee will be seen to be operative ad valorem exactly as in cases of succession under a Will. Item No. 91 of the First List mentions rates of stamp duty in respect of bills of exchange and such like but not immovables. Stamp duty is also important to note, because mutation fees ad valorem on transfers made by way of deeds is prescribed in the impugned regulations of 1989 exactly in the same manner as stamp duty is prescribed for transfer of real property.
48. In the State List i.e. List II, Item No. 6 mentions public health and sanitation.
49. Item No. 5 mentions powers of Municipal Corporations. The Act of 1980 is supportible inter alia on the basis of the fields indicated by these items. Item 48 of the State List mentions an estate duty in respect of agricultural land. No land within the region of the Calcutta Municipal Corporation can be described as agricultural land (yet!). Under Item No. 49 taxes on lands and buildings are mentioned. This item would support the rates levied by the Municipal Corporation on buildings as per Section 270 of the Act.
50. Item 63 of the State List mentions rates of stamp duty in respect of documents other than those mentioned in the Union List, that is, the State Government would be competent to fix rates of stamp duty on documents other than documents like bills of exchange, bills of lading etc., mentioned in item 91 of List I.
51. Item 44 of the concurrent list mentions stamp duties other than duties or fees collected by means of judicial stamps but not including rates of stamp duty.
52. Looking at these different items of the three lists it is quite clear that the State Government could not, even acting in its own legislative capacity, impose an estate duty on non-agricultural land. That is the province of Parliament.
53. If we look at the Schedule of the impugned Regulations we shall find that in that garb of imposition of mutation fees the Municipal Corporation has done nothing other than impose an estate duty in cases of succession under a Will. The imposition is ad valorem as was in the case of an estate duty. One is reminded of the times when the Estate Duty Act was in force before the death of Mrs. Indira Gandhi, when in applications for probate of a Will the applicants annexed an Estate Duty Clearance Certificate. But estate duty for non-agricultural property is gone with all other estate duty. Only Parliament can re-impose it. Even the State of West Bengal could not re-impose it acting by itself. Still less can the Calcutta Corporation, which is a creature of the State Government, impose in the garb of mutation fees estate duty on lands and buildings in Calcutta in cases of succession under a Will.
54. This discussion shows how unsustainable the impugned Regulations are, and with all due respect, how little technical legal thought must have been utilised before the framing of such large scale money raising Regulations.
55. No doubt a State cannot run without money. No doubt money has to be had from those people who are transacting in money but it is not the law that the State or State Authorities can impose tax and take a share of money whereever money is flowing amongst the citizens. Money is involved when a house is sold; valuable property is involved when one succeeds under a Will but just because these changes involve monetary value, the State or the State Authorities cannot intervene at these lucrative junctures for the purpose of taking a share from the citizens for running the State.
56. The mutation fee for succession under a Will is, therefore, clearly bad,
57. The mutation fees imposed for cases of transfer by Deed or lease by execution of Deed partake, in my opinion clearly of the character of stamp duty which is imposable on transfers by deeds inter vivos.
58. It is clear to us, on a joint reading of item 91 of List I, Item 63 of List II and Item 44 of List III, that the State Government could impose stamp duty on leases and conveyances for immoveable property by making W. Bengal rates for these in the Stamp Act Schedule, perhaps also regard to only such property as lies within the limits of the Calcutta Municipal Corporation. It suffices however, to mention that even if the State had such power, it did not and could not delegate it to the Municipal Authorities for the purpose of imposing it in the garb of imposition of mutation fees. But in the 1989 Regulations the authorities have done just that. It is only that the Deed need not have to be stamped, but to get the owner's name on the Municipal record payment has to be made ad valorem; the gradation is on the value of the property; the amount to be paid is quite a sizable percentage of the value of the property. If this tax is not similar to imposition of stamp duty on Conveyance and transfer of real property then what is? I repeat that in discussing the lists and the competence of the State Legislature itself I have travelled a little outside the strict arguments of the parties. I also repeat that I considered such enlargement of discussion necessary not only in the interest of the writ petitioner but in the interest of the public at large. Since I propose to strike down the 1989 Regulations, it would affect the Municipal Authorities and many transferors and transferees, of the post, of the present and of the future. As the Regulation was bad, ab initio, all mutation fees collected on the basis of such Regulations would have to suffer the same fate and all those still uncollected must remain uncollected forever.
59. I do not want and I do not think it necessary to enter separately into Mr. Ghosh's argument about the unsustainability of the Regulations on the grounds of unreasonable classification and absence of nexus with the objection of smoothening the mutation operation and billing system. In my opinion, this argument is but a satellite argument of the main one of the mutation fees as imposed being unsustainable as fees as such. If Mr. Ghosh wins on that primary point, and he has already won, then the satellite argument also succeeds because the fee has no reasonable nexus with mutation but has nexus with a host of other things like drainage and water supply. Had Mr. Ghosh lost on the first point, which he has not, it would not perhaps be possible to maintain the satellite argument nonetheless, but into this region of conjecture and hypothesis we need not enter. One last word about imposition of fees before I leave the matter. The last item of the Union List being Item 97 mentions residuary matters including taxation matters which are not enumerated in the State list or the concurrent list. Residuary taxation, therefore, is the province of the Parliament.
60. Item 96 mentions fees in respect of any of the matters mentioned in the Union List excepting Court-fees.
61. Exactly similar to item 96 of List 1, are item 66 on List II i. e., the State List which allows legislation for fees in respect of any matters in the State List but not Court-fees.
62. A similar legislative entry is there in the concurrent list under Item 47.
63. This is another important point making a substantial difference between taxation and fees. Tax can be imposed only under specified heads by the State. Residuary taxation, even if otherwise constitutionally permissible is the province of Parliament. Fees, however, are absolutely different. There are a host of State Legislature items. There can be a necessity of imposing fees in relation to any of those. Such imposition can be made by the State. Why is this distinction between tax and fees maintained? The reason is that taxation can be large, that it can be made for the large necessity of State expenditure but for fees, as the law is, a quid pro quo has to be demonstrated. The State might have to do something in regard to a legislative entry and for it might have to charge a fee to cover its expenses on the basis of a reasonable nexus. Such covering of expenses is always permitted. Fees are, therefore, easy to impose, easy to sustain but those must be fees properly so called and substantially so understood. A tax on the other hand is much more difficult to sustain and an imposition of tax is naturally much more Jealously guarded by the Court. The mutation fee here partakes the character of tax, is not a fee properly so called or understood and is, therefore, badly imposed by the Municipal Authorities which is but a creature of the State Legislature.
64. The writ application, therefore, succeeds. The impugned Regulations of 1989 being the Calcutta Corporation (Taxation) Regulations 1989 are absolutely struck out and declared as void as ab initio. There was no possibility of saving it in part or reading down any part of the Regulations. The entirety suffers from a mis-understanding and misconception (with due respect) of State powers. Municipal powers and the characteristics of a fee properly so called and understood. Apart from the above order there shall be rule absolute in terms of prayers (a), (b), (c) and (d) of the writ petition. In prayer (c) (i) 1989 shall be read in place of 1980. The writ petitioners will be entitled to the costs of this important litigation assessed at Rs. 75,000/-.
65. The learned Advocate General was given notice but since State Legislation was directly involved, he perhaps thought it unnecessary to appear.
66. Stay of operation of this order is asked for by the appearing respondents but prayer is unhesitatingly turned down, as imposition of mutation fees on the basis of the struck down Regulation would permit undue extortion from the citizens.
67. Authenticated copies of the judgment and order will be made available to the learned Advocates of the parties, and they and all concerned will act thereupon notwithstanding the pendency of the perfection of the order and rule, which is undertaken to be brought about in the usual course by the writ petitioners.